TMI Blog2016 (4) TMI 56X X X X Extracts X X X X X X X X Extracts X X X X ..... led law that clandestine clearance as alleged by Revenue, the onus is on the Revenue to produce copies of the invoices etc. in support of its allegation. In the absence of such parallel invoices, the allegation cannot survive. Further, find that the Revenue have not brought anything on record to support any unaccounted acquisition/procurement of inputs(raw materials). Rather the inputs of the appellant are acquired from the PSU and the same are duly accounted for and duty paid. Thus, it appears that the Revenue have made out a half baked case of clandestine removal and the same is not sufficient save and except the 8 parallel invoices as noticed herein above and accepted by the appellant. Further, it is settled law that a confessional statement cannot be the sole basis for establishing clandestine clearance in absence of other corroborative evidence. The duty on the value of clandestine clearance of ₹ 7,31,140.17 have been worked out by the Revenue on the direction of the Tribunal @ ₹ 92,144/-. Accordingly, the balance demand is set aside. The appellant is accordingly ordered to pay the above amount along with interest, which can be adjusted against the amount o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... for captive consumption. Further during scrutiny the investigation found three invoices bearing same serial number 606 and 2 invoices bearing same serial number, that is, 613. The statement of Mr. D.P. Singh - Director of appellant was taken on 6/12/05 wherein he stated that they had issued the last invoice number 638. On being shown pre-authenticated blank invoices number 641 to 645 and 653 to 657 and was asked about the invoices bearing numbers 639, 640 and 646 to 652, he replied that the said invoices were missing. Further scrutiny of documents revealed that V. Trans and Lalji Mulji transport, were the principal transporters of the goods cleared by the appellant. It also appeared that the appellant had clandestinely cleared goods to Jay Enterprises, Rajkot and Krishna marketing, Ahmedabad. The investigation visited and searched the premises of Jay Enterprises at Rajkot and found some invoices which appeared to be parallel/bogus. Statement of proprietor J. Mehta was recorded on 14.12.2005 wherein he stated that he was engaged in was procuring goods from appellant. He further confirmed that material was dispatched mainly through the V. transport and LM transport. It appeared to R ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hown copies of Central Excise invoices which were mentioned in the lorry receipts, Mr. Ojha admitted that some of the invoices were in the name of other customers, even though they had received the goods. He further stated that their average monthly purchases from the appellant was ₹ 8-10 lakhs. Earlier they were trading in the name and style of M/s. Blue spot agencies (Proprietory Mr. Manoj Ojha). In the Further statement recorded by the investigation of Mr. Ojha he confirmed the earlier statement and also produced a statement comprising of 2 pages of LM transport which reflected the materials received by them from the appellant. Except about 4 entries, he confirmed, they received the goods from the appellant. 3. The investigation also recorded the statement of Anil P Mishra, the Branch Manager of V. Trans Ltd.,Vijay Bhanushali, Branch Manager of M/s Lalji Mulji Transport Ltd., Dhirajlal Amritlal Modi, Manger of the appellant, Praveeen Jadhav, Accountant of the appellant, Tushar Shah, MD of the appellant, Manjit Singh Kohli, Director of M/s Kohli Automobiles Pvt. Ltd. (buyer of the goods of the appellant) and one Shabbir Rampurwala, Accountant of the appellant. That Mr. M ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ppellant contested the show-cause notice by filing interim reply and also reserving their right to file final reply after receipt of copies of relied upon documents vide their letter dated 02.01.2007, also attached comprehensive list of the documents required by them to file proper reply to the show-cause notice. In response, the Superintendent by letter dated 22.1.2007 informed that the documents have already been supplied along with show-cause notice. Further, informed that the date of hearing is fixed on 16.4.2007. Although the appellant filed an interim reply dated 6.2.2007, they reiterated their request for relied upon documents categorically stating therein that it is only an interim reply and final reply shall be submitted only after receipt of a copy of the documents sought by them. Further, cross-examination of 25 persons including Central Excise Officers was prayed for. The request for relied upon documents was again reiterated by letter dated 12.3.2007 stating therein that the documents are crucial and the entire demand was sought to be confirmed based on the relied upon documents. A copy of which is not supplied till date. The Superintendent vide its letter dated 30.3.2 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion of witnesses. 3.5 Being aggrieved, the appellant had challenged the Order-in-Original before the Commissioner (Appeals), who was pleased to dismiss the appeal by his order dated 5.9.2008 for non-compliance of pre-deposit ordered. Being aggrieved, the appellant filed appeal before this Tribunal mainly on the ground of principle of violation of natural justice as the appellants were not given copy of documents relied upon by the Revenue nor had permitted cross-examination leading to miscarriage of justice, there being no proper opportunity of hearing made available. This Tribunal vide its final order No. A/254-259/09/EB/C-I dated 11.8.2009 directed the appellant Icconol Petroleum to make pre-deposit of ₹ 20 lakhs towards duty and also furnish a Bank Guarantee of ₹ 5 lakhs within a period of four weeks and subject to that remanded the case back to the adjudicating authority with respect to all the parties with direction to furnish all the documents that are relied upon in the show-cause notice. Further direction was given to deal with the request of the cross-examination of various persons as sought by the appellant, in accordance with law. 3.6 Pursuant to direct ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s were requested for, including letter dated 21.1.2012 filed by the appellant after the order of the Tribunal. In the circumstances, the appellant urged that no adverse inference can be drawn without supply of the documents relied upon. It was further contended that the case of the Revenue is mainly based on lorry receipt recovered from the transporters and recovery of few bills in the name of M/s Gurukrupa Marketing, Raipur, M/s Manoj Agro Traders, Gwalior, M/s Raj Trading Company, UP and M/s Kohli Auto, Delhi for commercial reasons. 3.10 It is further contended that none of the transporters have said that the goods have been cleared without payment of excise duty. It was further contended that the sale proceeds from Krishna Marketing and Jay Enterprises have been properly recorded in the Books of Account of the appellant maintained in the ordinary course of business. In the lorry receipt from the Transporter, only invoice no. are mentioned and on the basis of the same, the conclusion drawn by the Revenue as to clandestine removal is erroneous and have no legs to stand. It was further contended that Revenue has to establish clandestine removal, but onus has not been discharged ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n by the witnesses as per their mutual convenience. It was further observed that invoice generated were used and thereafter returned to the appellant and destroyed and subsequently parallel no. of invoices were generated in a clandestine manner, and no manufacturer will preserve the two set of invoices. In such a case, only few invoices which was recovered are available, which were supplied to the appellant on 20.12.2006. It was further observed that the staff members of the appellant have confirmed the generation of parallel set of invoices, which are not retracted. 3.13 As regards the denial by the transporter that they were never asked to transport the goods without invoices, it was concluded that it does not mean that there was invoice with the consignment and that invoice no. with details of goods including value is mentioned in the lorry receipt, the same reached to the main (designated) buyer, and on completion of transportation, the invoices were returned/destroyed. It was thus concluded that the invoice No. mentioned in the lorry receipt are reliable, only few invoices could be recovered during search and seizure which proved the modus operandi. It was further concluded ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cise duty, other elements etc. The noticee's contention in the matter appears to be correct. Total value of clearance in annexure A-1 A-2 of the show-cause notice is ₹ 3,03,11,519/-. Considering the rate of duty as 16.32% including Education Cess, the assessable value comes to ₹ 2,60,58,734/-, taking the total invoice value as cum duty price. On this revised assessable value the Central Excise duty amount comes to ₹ 42,52,785/-, which is recoverable from the noticee. (b) Annexure 2 to the written submission filed by the notice: Noticee's contention is not correct and not acceptable. The value of ₹ 39,05,293/- is correctly shown as per Consignment Note NO. 1327133 and the said amount is already appearing at Sr. No. 43 of the Annexure A-1 of the impugned show-cause notice dated 08.12.2006. There is no evidence submitted by the notice to substantiate their claim. They did not discharge their burden satisfactorily to claim concession. (c) Annexure 3 to the written submission filed by the noticee: Noticee's contention is not acceptable as they have not produced any documentary evidence claiming exemption rate of duty @ 9.60% s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 3.20 Being aggrieved, with the dismissal of appeal, the appellants are before this Tribunal. 4. It is urged by the learned Counsel for the appellant that the main allegation of the Revenue is that the appellant have issued parallel invoices and have cleared excisable goods without payment of appropriate duty. It is stated that it is not the case that they have not paid the duty of excise on the goods removed. The whole demand is based on assumption and presumption in view of some parallel no. of invoices, which is a clerical error. It is further vehemently urged that there is miscarriage of justice as there have been violation of the principles of natural justice for the reason that the appellant was not provided copy of all the relied upon documents as well as non-relied upon documents. During the hearing held on 18.9.2014, this Tribunal appreciated that all the relevant documents have not been supplied to the appellant and as such directed the appellant to give a list of all the documents, a copy of which have not been provided to them. And accordingly directed the learned AR to obtain the original copy of all the documents and produce before this Tribunal. The appellant v ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e consignments at Sr. No. 1,9,27, 28 and 46 alleged to have been cleared as appearing in annexure A1-A2 to the show-cause notice, are in fact consignments cleared by other companies and not by the appellants and the same was demonstrated by drawing attention to the lorry receipt at the time of hearing. Further, the appellant also demonstrated that at one instance, Sr. No. 1 Annexure A1 to show-cause notice, the rate per kg. applied in one consignment is inflated almost 10 times the average per kg price of the goods manufactured and cleared by the appellant. In the facts and circumstances, the failure of the Revenue to produce a copy of the invoices other than 8 invoices, the balance demand raised is only on basis of assumption and presumption, is fit to be set aside. 5.1 The allegation of the Revenue that parallel set of invoices was used to deliver the goods to the customers of the appellant in northern part of India is also based on assumption and presumption as the same is not corroborated by any of the evidence such as movement of goods nor any such duplicate invoice was brought on record. 5.2 It was further reiterated that the Revenue had not found anything against the s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... es, there is no evidence produced by the Revenue in support of the allegation of clandestine removal as alleged on the basis of parallel invoices. It is settled law that clandestine clearance as alleged by Revenue, the onus is on the Revenue to produce copies of the invoices etc. in support of its allegation. In the absence of such parallel invoices, the allegation cannot survive. Further, I find that the Revenue have not brought anything on record to support any unaccounted acquisition/procurement of inputs(raw materials). Rather the inputs of the appellant are acquired from the PSU and the same are duly accounted for and duty paid. Thus, it appears that the Revenue have made out a half baked case of clandestine removal and the same is not sufficient save and except the 8 parallel invoices as noticed herein above and accepted by the appellant. Further, it is settled law that a confessional statement cannot be the sole basis for establishing clandestine clearance in absence of other corroborative evidence. The duty on the value of clandestine clearance of ₹ 7,31,140.17 have been worked out by the Revenue on the direction of the Tribunal @ ₹ 92,144/-. Accordingly, the ba ..... X X X X Extracts X X X X X X X X Extracts X X X X
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